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CHCA Board votes down Herbiary variance request

On Thursday night, the Chestnut Hill Community Association Board voted to oppose the property owner’s request for a zoning variance that Herbiary co-owners Andrew Celwyn and Maia Toll need in order to comply with existing zoning.

by Wesley Ratko

Herbiary, the herbal retailer at 7751 Germantown Ave. that was renting space at the rear of 133 E. Mermaid Lane for classes and consulting, suffered another setback at Thursday night’s meeting of Chestnut Hill Community Association Board, which voted to oppose the property owner’s request for a zoning variance that Herbiary co-owners Andrew Celwyn and Maia Toll need in order to comply with existing zoning.

According to the motion approved by the Board, the classes being conducted by Herbiary in a rear building at the location are not acceptable under the current zoning.

In his address to the Board, Celwyn began by saying that the property has been the home of a commercial enterprise of one sort or another since the 1920s, something the neighbors knew about when they moved in. He said Herbiary has hosted meetings and held classes at the space since the fall of 2011 and there were no complaints from the neighbors for the first year.

In September 2012, Celwyn said he was approached by neighbors who were concerned about the location of signs he had posted and about client parking. Shortly thereafter he applied for a new use permit with and was denied by the Department of Licenses and Inspections.

Confusing the issue further, the basis for the denial had nothing to do with Herbiary’s use of the property but instead involved the conversion of an on-site office to an apartment without approval from the city. These two issues have confused the matter and tensions between Herbiary and the neighbors have escalated ever since.

“Since the use has been used commercially since the 1920s and the particular space that we are in was part of that very first commercial use, we do not see any issue with our use of the space,” Celwyn said. He added that they have the same use and occupancy permit required for the use of any commercial space.

“While we consider our use appropriate under the existing permit, these neighbors refused to meet with us and were adamant that we obtain a new use permit,” he said.

According to Celwyn, the opposing neighbors are difficult to reach, complicating efforts to come to a resolution.

He told the Board that Herbiary was willing to accept provisos that would limit the number of classes and continue their limited use of the space. In the last six months, he said, the space has only been used 20 times, with an average of three or four times a month. He said that more frequent use is not a part of their business plan.

“This particular space is still conducive to our use because of a property in the rear where we are helping to develop a garden,” he said.

The neighbors opposed to Herbiary’s presence were once again represented by Kristoffer Jacobson of 131 E. Mermaid Lane, who began his address to the Board by saying Herbiary was operating illegally and that the application Celwyn filled out to get a new variance contained errors.

“Instead of asking for a new use,” Jacobson said, “the applicant [Celwyn] said that he was continuing a use.”

Jacobson said that by focusing on the apartment and not the business use, Celwyn was evading the real issue.

Celwyn denied that, saying he filled out the application for a use permit under the guidance of people at the Department of Licenses and Inspections, and that any errors that resulted were not his fault.

“There was no deception,” he said.

Board member Stephanie Chomentowski said that even if the process has been flawed the only solution may be to start the process over.

Celywn asked instead for an up or down vote from the Board, saying the cost of starting again was significant and something he hoped to avoid.

Board member Richard Snowden noted that historical events have resulted in the mixing together of different uses in this neighborhood. Whether that mix is a reality in the future is something the community has to decide.

“I’m not sure that’s what we want going forward,” he said. “It’s a laudable business, but we need to consider those around it.” Rather than see the expansion of a commercial use in a residential district, Snowden said he’d like to see Herbiary expand along the Avenue.

Ellen Deacon, owner of 133 E. Mermaid Lane, said it wouldn’t be possible.

“What they do here cannot be done along the Avenue,” she said.

Deacon addressed the Board to explain her vision of community for this and other immediately adjacent properties. She said she came to Chestnut Hill in 2004 and bought the properties on E. Mermaid Lane (she also owns 127 E. Mermaid Lane) with a vision of creating a community, something she stressed throughout the course of her address.

“I wanted to come here and age in place,” she said. “I’m not just passing in the night.”

She said envisioned the commercial use in the back of the property as having a people-centered use, rather than one that was strictly for business. She said Herbiary was the right business to help her achieve that.

Not all of her neighbors agreed with her version of community.

“I just want to say very clearly that we do not share that vision,” said Douglas Martenson, a resident of E. Mermaid Lane and a vocal opponent of Herbiary’s use of the property.

Martenson was one of several residents of E. Mermaid Lane present who oppose Herbiary’s use of the space.

Herbiary co-owner Maia Toll addressed the Board to protest the neighbors’ tactics in addressing the issue. She referred to a packet of information the neighbors distributed to the Development Review Committee at their February 19 meeting that contained photographs of Herbiary students on the property that Toll described as having been taken through the hedges.

“I totally respect that we have issues,” Toll said, “ but I am appalled and flabbergasted these photos were taken. It is illegal to photograph someone without their permission.”

Jacobson defended the photo taking by saying it was important to gather evidence to support their claims.

“We had to document the use before turning in our complaint because L & I has no inspectors on weekends,” he said.

Board members Joyce Lenhardt and Stephanie Chomentowski stressed the importance of process and recommended that Celwyn reapply with the correct information. Snowden encouraged both Herbiary and the neighbors to keep talking.

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Jacobson’s defense that he was somehow “deputized” by L&I to illegally photograph others in order to document the alleged violations and get an inspector on site — in other words, break a law to enforce another law — is tenuous at best. But what is his explanation for distributing the illegal photos as part of an “information packet” at a public hearing where L&I was not involved? The distribution of the photos goes well beyond his self appointed vigilante mission and is a flagrant violation of the rights of others. It remains to be seen if the individuals who suffered harm from Mr. Jacobson’s actions will press charges; meanwhile his neighbors may want to think twice about the peeping Tom in their midst.

L. Lucas

The larger issue is that the owner of the property needs to abide by the same rules other owners of business must follow. I thought the Community Association did a good job at Thursday’s CHCA Board meeting of answering the owner’s questions about what she needed to do to make it right with L&I. The owner has some legwork to do before Herbiary (as a tenant) can do the legwork they need to do.

P. Billig

I am an Herbiary student, and I am OUTRAGED that this man took pictures
of me without my knowledge or consent, and then distributed them to
others! How am I supposed to feel safe on the streets of Chestnut Hill
now? I feel completely violated. Taking pictures of me like this is
inappropriate and creepy.

Why on earth would this Development
Review Committee accept such photos? Why would the Community Association
Board not speak on behalf of the individuals in these photos? This
man’s complaint is with a property owner and a business owner, both
long-time members of the Chestnut Hill community, not with me. Of course
I support the Herbiary, Maia Toll, Andrew Celywn and Ellen Deacon, but
how do photos of an unsuspecting me become part of this issue?

I
own a small business in an affluent area of Montgomery County, and this
incident has made it to the ears of my patrons, clients and local
business associates. It makes me much less likely to support the CH
community personally and by referral, if it sees no need to support me.

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